Rance and Shorrock and Anor
[2013] FCCA 805
•5 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANCE & SHORROCK & ANOR | [2013] FCCA 805 |
| Catchwords: FAMILY LAW – Parenting – geographical challenges – siblings separated (one child living with father, the other child living with maternal grandmother) – request for s.91B Department of Human Services intervention. |
| Legislation: Family Law Act 1975, Part VII, s.91B |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS RANCE |
| First Respondent: | MR SHORROCK |
| Second Respondent: | MS RANCE |
| File Number: | LEC 1 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 4 July 2013 |
| Date of Last Submission: | 4 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Filewood Carty Lawyers |
| Solicitor for the First Respondent: | Claire Heaton Solicitor |
| The Second Respondent (self-represented) |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The child X born (omitted) 2011 (X) live with the Father.
In 8 weeks from the date of these Orders, the maternal Grandmother is to bring the child Y born (omitted) 2009 (Y) to Sydney and the Father is to bring the child X to Sydney for two consecutive days as agreed or in the absence of agreement Saturday and Sunday. On the first day Y is to spend 2 hours with the Father and X as agreed or from 1:00pm to 3:00pm and on the second day X is to spend 2 hours with the maternal Grandmother and Mother and Y as agreed or from 1:00pm to 3:00pm.
Thereafter in 8 weeks from the visit referred to in Order 2 above, the maternal Grandmother is to bring the child Y to Sydney and the Father is to bring the child X to Sydney for two consecutive days as agreed or in the absence of agreement Saturday and Sunday. On the first day Y is to spend 4 hours with the Father and X as agreed or from 11:00am to 3:00pm and on the second day X is to spend 4 hours with the maternal Grandmother and Mother and Y as agreed or from 11:00am to 3:00pm.
Thereafter in 8 weeks from the visit referred to in Order 3 above, the maternal Grandmother is to bring the child Y to Sydney and the Father is to bring the child X to Sydney for two consecutive days as agreed or in the absence of agreement Saturday and Sunday. On the first day Y is to spend 6 hours with the Father and X as agreed or from 11:00am to 5:00pm and on the second day X is to spend 6 hours with the maternal Grandmother and Mother as agreed or from 11:00am to 5:00pm.
Thereafter in 8 weeks from the visit referred to in Order 4 above and thereafter for 4 visits every 8 weeks, the maternal Grandmother is to bring the child Y to Sydney and the Father is to bring the child X to Sydney for three consecutive days as agreed or in the absence of agreement Saturday, Sunday and Monday. On the first day Y is to spend time with the Father and X as agreed or from 10:00am Saturday until 10:00am Sunday and from 10:00am Sunday to 10:00am Monday X is to spend time with the maternal Grandmother and Mother.
Thereafter every 8 weeks the Father will spend time with Y from 10:00am Saturday or such other day as mutually agreed to 10:00am the following Saturday and from the conclusion of that visit the maternal Grandmother is to spend time with X from 10:00am that Saturday to 10:00am the following Saturday. Changeover of the children is to take place in Sydney with the maternal Grandmother bringing the child Y from (omitted) to Sydney for changeover and the Father bringing X to Sydney from Canberra.
Unless otherwise agreed the changeover will be at the home of the paternal Grandfather, Mr R.
The child Y lives with the maternal Grandmother.
The Father and the maternal Grandmother have day to day responsibility for the children in their care.
The Father, Mother and maternal Grandmother have equal shared parental responsibility for the children.
Both parties be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
THE COURT FURTHER ORDERS THAT:
The matter be set down for 3 day Final Hearing on 29 – 31 January 2014 at 10:00am.
The parties are to file and serve any further material on which they seek to rely no later than 20 December 2013.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
No later than three (3) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
Leave be granted to the parties to relist the matter on 72 hours’ notice.
The proceedings be adjourned to 20 August 2013 at 9:30am in Sydney for mention via teleconference.
Dial the teleconference Access Number (omitted).
At the prompt, enter (omitted) followed by the hash (#) key.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born (omitted) 2011 and Y born (omitted) 2009 and the Legal Aid Commission of NSW is requested to provide such representation.
The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
Pursuant to s91B of the Family Law Act 1975 that the Department of Community Services intervene in these proceedings. Upon request, the Court provide to the Department of Community Services copies of all documentation relevant to the proceedings before the court to enable it to consider the request to intervene in the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Rance & Shorrock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
LEC 1 of 2013
| MS RANCE |
Applicant
And
| MR SHORROCK |
First Respondent
| MS RANCE |
Second Respondent
ORAL REASONS FOR JUDGMENT
This case is about two children - Y, born (omitted) 2009 who is four years old and X, born (omitted) 2011 who is two years old. The applicant is the maternal grandmother. She lives in (omitted) and is 49 years old. The respondent is the children’s father. He lives in Canberra and is 23 years old. The second respondent is the mother. She lives in (omitted) and is 24 years old.
Y lives with the grandmother in (omitted). X lives with the father in Canberra, and this has been the case for about a year. The mother appears to live with the grandmother in (omitted). At the outset I want to say that at an interim level, it is quite irrelevant how the present situation has arisen. The fact is that X has not seen his mother, grandmother, or brother for about a year. There is nothing the Court can do to change that. At a final hearing, the circumstances that led to this most unsatisfactory situation will no doubt be explored in much more detail.
I am sure submissions will be made about how this reflects on the attitudes, responsibilities and the parenting capacities of the parents. But for today, in the context of an interim application it is quite irrelevant. The fact is, as I said, that X has not seen significant members of his family for an extended period of time. One of the practical issues in this case is that the parties are dependent on Centrelink benefits, although the grandmother’s income is supplemented by some part-time work.
Another reality is the distance that separates (omitted) from Canberra, and the logistical challenges in travelling between these areas for a socially disadvantaged family. Based on all of the evidence that is available before the Court today, which includes the affidavits filed by the parties as well as the documents produced on subpoena by the Department of Community Services and the New South Wales Police, it is possible to make some observations that are akin to uncontested facts, or certainly facts that are hard to contest given the evidence before the Court.
It seems, for example, that Y has always been cared for by his grandmother though with different and varying levels of assistance from both the mother and the father in the past. It seems that X was also cared for by his grandmother after his birth for a period of months. It seems from the evidence that the grandmother has consistently had concerns about the capacity that both the mother and the father to adequately parent the children. It seems from the evidence that the parental relationship has been a volatile one, as indeed has been the relationship between the grandmother and her daughter, that is to say the mother.
It seems from the evidence that the mother has had past drug issues, but the ongoing nature of that is an unknown. It seems that the father suffers from a number of disabilities and is currently in a relationship and he and his partner are both expecting a child. It seems from the evidence that the family identifies as being of indigenous background. It seems that the mother’s participation in these proceedings has been limited in the sense that she has appeared before me in Coffs Harbour, indicated that she would be getting legal advice and representation and is present this morning by telephone as I pronounce these reasons.
It seems that based on what the mother previously told me that she supports the grandmother’s proposal for the children to live with her. And it seems from the Department of Community Services file that the parents and the children were involved with Brighter Futures in the past, especially at the time of X’s birth. As I say, all of the matters I have recited above seem to be relatively uncontentious, are drawn from the affidavits and the documents that have been presented on subpoena.
At the interim hearing yesterday, the grandmother’s proposal was contained in the outline of case document prepared by her solicitor, and I will simply incorporate the orders into these my oral reasons. In effect, she proposed that the children be reunited and live with her, that the children spend time with the mother as agreed between the mother and the grandmother, and the children spend time with the father as agreed between the grandmother and the father. The mother’s proposal seems to have supported what the grandmother was advancing.
The father’s proposal is contained in his response filed 3 July 2013, which I incorporate into these, my oral reasons. For all practical purposes, he is proposing that on an interim basis the existing situation be maintained with X remaining in his care and Y remaining in the grandmother’s care. But he makes a proposal for there to be contact between the children and the parents.
The applicable law is of course contained in Part VII of the Family Law Act. The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Let me discuss some of the evidence and how the law applies to it. As I have said before, there is no point lamenting the very unsatisfactory state of affairs that exists as a result of what has happened in the past. And there is no point lamenting the complexity of the problem that confronts the parents and indeed the Court.
The fact is that X has not seen his mother, grandmother, or brother for about a year. In all likelihood if he has a memory of who these people are, it is a distant one. In all likelihood and simply drawing on my experience in this jurisdiction, the main adult person in X’s life is his father.
The question for the Court is whether that relationship should be disrupted now suddenly and, in the practical circumstances of this case, for an extended period, in order to reunite X with his mother, grandmother and brother. Whilst this might be the outcome on a final basis, it cannot be the outcome on an interim basis.
This case is really about the least of the worst options in an entirely unsatisfactory situation that has been created. The Court assesses that maintaining the status quo – that is to say, keep the children where they are for now – is the least of the worst options. The Court will appoint an Independent Children’s Lawyer on an urgent basis. The Court will issue an order under section 91B of the Act inviting the Department to become involved in the case. Not just because there are concerns about both the mother and the father, and to a lesser extent the grandmother, but with a view to seeing if the Department can bring some resources to this case that will facilitate the contact and communication between young children and parents in the considerable geographical challenges thrown up by this case.
There are too many unknowns in this case to make the drastic changes that the grandmother and the mother proposes. For example, we do not know what the impact on X would be of suddenly being taken away from the only – or the main adult figure he has known for half of his short life. Especially in circumstances where the capacity of the parties to make any form of contact and communication work is so tenuous.
Moreover, we do not know the precise circumstances of the grandmother’s household. The documents produced by the Department of Human Services and New South Wales Police do suggest a level of volatility as between the grandmother and mother that is plainly not acknowledged or communicated in the grandmother’s evidence before the Court. So how, in these circumstances, would that household cope with another young child who would be struggling with an enormous emotional adjustment.
One gets the distinct feeling after having looked at the New South Wales Police and Department of Human Services files that the grandmother has minimised the potential issues that she has with her own daughter, and glossed over some of the challenges she faces if I were to make the orders that she asks me to make.
The problems inherent in the grandmother’s proposal are further accentuated by the very unspecific proposal she makes for contact which recognises the very difficult dynamics that exist in this family. By contrast, the father’s contact proposal is at least an attempt to come to grips with the enormous logistical, let alone psychological, issues for the children that would be associated with having contact. It is the least of the worst alternatives. This is a case where there are no good options available at the moment.
The role of the Independent Children’s Lawyer will be to try to increase the available options for the parents and the children, perhaps drawing on resources through the Department of Human Services and existing family resources in Sydney and elsewhere. I acknowledge the reality that the interim orders that I am about to make will need to be reviewed from time to time. I intend to allocate some hearing dates once I get an estimate from the lawyers about how much time I need to set aside.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 1 August 2013
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